[Editor’s Note: This is part of the joint I-CONnect/IACL-AIDC Blog symposium on “towering judges,” which emerged from a conference held earlier this year at The Chinese University of Hong Kong, organized by Professors Rehan Abeyratne (CUHK) and Iddo Porat (CLB). The author in this post formed part of a panel on “Towering Judges in Transitional/Non-Liberal Constitutions.” The introduction to the joint symposium can be found here.]

László Sólyom was the first Chief
Justice of the Hungarian Constitutional Court between 1990 and 1998. There is a
consensus among constitutional scholars that he was the most dominant jurist in
the short-lived Republic of Hungary. There is, however, much less agreement
about his achievement. For example, Kim Lane Scheppele endorses the Sólyom-led
HCC for its judgments establishing the rule of law and democracy.[i] Bojan Bugarič and Tom Ginsburg are
also full of praise for “the strong leadership of liberal Chief Justice Sólyom.”[ii] Bruce Ackerman and Stephen Holmes, by
contrast, were doubtful about the initial achievements of the HCC because of
its weak democratic legitimacy.[iii] András Sajó warned early in the 1990s
that it undermined the rule of law that the judicial activism tended to
disregard the written constitution.[iv] Andrew Arato has observed that Sólyom
was, on the one hand, an admirer of Hans Kelsen’s legal positivism, while on
the other he mobilized a form of constitutional mythology derived from Carl
Schmitt.[v]

First movement: A constitutional
revolutionary

The year 1989 was the historical
turning point for the transformation from a Soviet-type regime to
constitutional democracy. The single-party system collapsed through roundtable
negotiations between the old regime and the democratic opposition. As a
representative of a conservative opposition party, Sólyom was an important
roundtable participant. He can be considered as one of the founders of the
republic.

In formal terms, the 1989 Constitution
was a modification of the 1949 Stalinist Constitution. The new preamble
contained a reference to the interim status of the Constitution. In substantive
terms, however, the 1989 transition breathed new life into the Constitution.
The models were international human rights instruments, as were the
constitutions of mature democracies. Hungary followed Western European
traditions in establishing a parliamentary system. Constitutional judiciary
belonged to the centralized model of judicial review.

László Sólyom claimed that the
roundtable constitution was a final one. He argued, that there was no need to
complete the constitution making project because the constitutional text
fulfilled the requirements of constitutionalism. Although he was very aware of
the legitimation problems by admitting that the process “did not originate
among the people,” Sólyom characterized the roundtable as a “constituent power.”[vi]

Sólyom expressed another powerful
argument on the constitution making authority. He insisted that the HCC has to
fulfill its task embedded in history to complete the regime change. Sólyom
believed that in the exceptional situation the HCC could replace the constitution-making
authority by its principled judgments. Thus, he sought to justify a “revolutionary
legitimacy” for the HCC.[vii]

Second movement: Chief Justice without
precedent

The 1990 starting point for
constitutional jurisdiction meant that neither domestic precedents nor a
doctrinal framework elaborated by academics guided the HCC. Chief Justice Sólyom,
based on his distinguished expertise and striking judicial ambition, had a
chance to dominate the inceptive adjudication period. Substantively, the HCC
initiated to create from case to case a coherent system of fundamental rights.
Methodologically, the HCC undertook a kind of moral reading of the underlying
constitutional principles.

The HCC placed
human dignity at the center of its judicature in an unprecedented way. In its
first landmark judgment, the HCC abolished the death penalty. The
interpretation of human dignity, both a moral value and a constitutional right,
served as an example for the Ukrainian, Lithuanian, Albanian, and South-African Constitutional
Courts. Chief Justice Sólyom emphasized that human dignity is a value a priori and beyond law, a source of liberty and equality rights,
therefore the Court’s task is to transform many of its aspects into a true legal
right.

Despite the clarification of
dignity-based constitutional freedoms and equality, the HCC had a Janus-faced
constitutional adjudicatory record. In very crude terms, the case-law has two
contrasting aspects: acknowledging the separation of state and church, respect
for freedom of speech and other liberty rights on the one hand; and restrictive
views on the social role of women, protecting the life of the embryo and
denying equal respect to same-sex couples, while privileging traditional
marriage and so-called historical churches on the other.[ix]

Third movement: The guardian of the
constitution

After the end of his mandate, Sólyom
continued his academic career. In 2005 he emerged as a candidate for head of
state, nominated by an environmental group and supported by the then-opposition
party Fidesz.

President Sólyom sought to expand his authority as the guardian of the constitution during the deep crisis of the republic. His claims to real power as the head
of state and the depository of national sovereignty led to constitutional
struggles. He
was frequently in political conflict with the prime minister. His constitutional maneuvers demonstrated the president’s moral
integrity above the ordinary course of political fights between the governing
party and the opposition. His critics, however, warned that the head of state had begun to represent an alternative government program: he
strongly criticized the government’s economic policy, launched his own foreign
policy, and engaged in conflicts with neighboring countries.

During his 5-year term, Sólyom vetoed as many acts as his
predecessors had in the previous one-and-a-half decades. The HCC, in line with
the presidential motions for ex ante constitutional review, became very
active again between 2006 and 2010, declaring an unprecedented number of newly
adopted acts unconstitutional. Sólyom, who had formerly represented the view, following
Kelsen and Heller, that the guardian of the constitution was the HCC, seemed to
borrow ideas of Carl Schmitt in claiming that the head of state (sovereign) had the authority to be the ultimate guardian of the constitution.

Fourth movement: without a happy
ending

In 2010, Fidesz
won a landslide victory in the parliamentary election and subsequently
adopted a range of amendments to the constitution regulating, among other
things, the constitutional judiciary and civil liberties. On top of this, prime
minister Viktor Orbán announced that a brand new constitution will be adopted.[x]

Sólyom expressed an unfavorable opinion
of the constitutional amendments and sent back to parliament for
reconsideration several pieces of legislation but did not turn to the HCC in
key issues. As he
explained, a series of HCC decisions excluded any judicial review of
amendments. In 2010, Sólyom did not choose to develop a new standard of review
of constitutional amendments. Subordination of both the HCC and the President
to the parliamentary majority seemed to be a new direction. In the very final
phase of the Republic of Hungary, the guardian of the constitution proved to be
powerless.

His critics concluded that in this way
the president assisted the adoption of an unconstitutional constitution and the
rise of an authoritarian system. Other observers, in contrast, have used Sólyom’s
critical statements on the emerging system as a reliable source of analysis. In
any case, the ruling party did not seem to be fully satisfied with Sólyom’s
presidency, therefore he was not nominated
for a second term of office.

Sólyom’s exceptional commitment to constitutionalism is beyond reasonable doubt. It will remain a subject of debate, however, whether he found the best constitutional tools for creating and saving the short-lived republic. I think we should accept that different facets of a complete oeuvre do not necessarily amount to a coherent view. We see parallels and paradoxes rather than a baroque harmony.

[viii]
Catherine Dupré,
Importing the Law in Post-Communist Transitions: The Hungarian
Constitutional Court and the Right to Human Dignity (Hart 2003) and László Sólyom — Georg
Brunner, Constitutional Judiciary in a New Democracy: The Hungarian
Constitutional Court (The University of Michigan Press 2000)

[ix]
János Kis and I have argued that the HCC was determined by a conception of the
Second Vatican Council. János Kis, Constitutional Democracy (CEU Press
2003) 295 and Gábor Attila Tóth,
‘Lost in Transition: Invisible Constitutionalism in Hungary’ in Rosalind Dixon
and Adrienne Stone (eds), The Invisible Constitution in Comparative Perspective (Cambridge UP
2018) 541–562

Your email address will not be published. Required fields are marked *

Comment

Name *

Email *

Website

Subscribe to I·CONnect

Enter your email address:

Submit to I·CONnect

We welcome substantive submissions via email on any subject of comparative public law. Submissions usually, though not always, range from 750 to 1000 words. All submissions will be reviewed in a timely fashion.
Please send submissions to contact.iconnect@gmail.com.